Abstract
The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.
Subsidiarity and the margin of appreciation
The doctrine of the margin of appreciation in the case law of the European Court of Human Rights (‘ECtHR’ or ‘Court’) is linked to the principle of subsidiarity, establishing the subsidiary role of that Court vis-à-vis national authorities. Both the margin of appreciation doctrine and the subsidiarity principle are jurisprudential constructs, developed in the case law of the ECtHR. Gerards 1 has pointed out that in the Handyside judgment, 2 which is widely seen as foundational to the margin of appreciation doctrine, the Court has rooted that doctrine in two arguments, one of which is the subsidiarity principle. 3
Subsidiarity and the ‘wide’ margin of appreciation
What is known as the ‘doctrine’ of the margin of appreciation – a number of rules of the game that can be derived from the ECtHR case law – includes scenarios in which the margin is restricted as well as scenarios in which it is broadened. For example, in the context of Article 10 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’), the Court holds that ‘a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest’. 4 Yet when the margin of appreciation is linked to the principle of subsidiarity – in ECtHR case law as well as in policy documents and scholarly literature 5 – the reference is usually to an argument in favour of the existence of a domestic margin of appreciation in general terms, and thus in defence of a degree of deference on the side of the Strasbourg Court.
In the same vein, Protocol 15 to the ECHR aims to introduce a paragraph in the Convention’s preamble that frames the margin of appreciation as an operational tool in line with the principle of subsidiarity: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.
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The jurisprudence of the Court makes clear that the States Parties enjoy a margin of appreciation in how they apply and implement the Convention, depending on the circumstances of the case and the rights and freedoms engaged. This reflects that the Convention system is subsidiary to the safeguarding of human rights at national level and that national authorities are in principle better placed than an international court to evaluate local needs and conditions. 7
The relationship between the margin of appreciation and the subsidiarity principle is not a one-on-one matter. Indeed, the subsidiarity principle is one among several underlying, justificatory principles or arguments for the margin of appreciation. As the above quote shows, the ‘better placed’ argument is another of this kind. 8 At the same time, the margin of appreciation doctrine is not the only expression of the subsidiarity principle. Arguably, the most prominent subsidiarity feature in the Convention system is of a procedural nature, that is the admissibility requirement of the exhaustion of domestic remedies. 9
The subsidiary role of the Court has been strongly emphasised by government actors in the reform process of the ECtHR since the Interlaken Conference in 2010, and one of the Judges has proclaimed that the Court is now experiencing the ‘Age of Subsidiarity’. 10 Nevertheless, references to the subsidiarity principle remain far from systematic in the Court’s case law. 11
Subsidiarity and the wide margin in the case law
In the Grand Chamber case law,
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references to the subsidiarity principle are not necessarily linked with the margin of appreciation. In terms of procedural subsidiarity, several references can be found to subsidiarity as a frame for the requirement of exhaustion of domestic remedies and for the interpretation of technical rules in that context.
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In the same spirit, the Court referred to the subsidiarity principle in the context of the rules regarding the loss of victim status,
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and when it ruled that ‘it is not open to a Government to put to the Court arguments which are inconsistent with the position they adopted before the national courts’.
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In addition, the Grand Chamber has linked the pilot procedure to the subsidiarity principle.
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Beyond procedural matters, in the context of the examination of the alleged violation of the Convention, references to the subsidiarity principle are generally part of an argument for restraint on behalf of the ECtHR. Yet, this is not always framed in terms of the margin of appreciation. Another context is that of deference to the assessment of facts by the domestic courts, where the reasoning is that, on account of its subsidiary role, the Court ‘must be cautious in taking on the role of a first-instance tribunal of fact’.
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In addition, the Grand Chamber has used specific language to define its role in immigration cases, with reference to the subsidiarity principle, but not as such to the margin of appreciation, stating that ‘where immigration cases are concerned, […] its sole concern, in keeping with the principle of subsidiarity, is to examine the effectiveness of the domestic procedures and ensure that they respect human rights’.
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Although the role thus defined, is not by definition a small one, its formulation illustrates that the reference to subsidiarity is intended to emphasise its restrictions, not its width. Another specific interpretation that has been linked to the subsidiarity principle is of a similarly restrictive nature, that is, the rule that the Court ‘must be careful not to reach a result tantamount to compelling the domestic authorities to apply the Convention retroactively’.
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The flip side of the emphasis on ECtHR restraint, is a focus on the room for manoeuvre of the national authorities. The Court has linked the subsidiarity principle to the choice of means of national authorities for ensuring the effective implementation of the Convention within their internal law.
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Likewise, the Court has on numerous occasions included a reference to the subsidiarity principle in its reasoning about the need for a wide margin of appreciation in a particular case. Prominent among Grand Chamber cases that followed this line of reasoning are the judgments in Christine Goodwin and I v UK, in which the Court held that: In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation’.
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[…] the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions […] In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight […].
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The principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies; otherwise the rights guaranteed by the Convention would be devoid of any substance. In this connection it reiterates that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective.
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The flip side of the coin
On occasion, the Court has emphasized the other side of the subsidiarity principle, that is, the primary responsibility of domestic actors to secure Convention rights. In the Grand Chamber case law, this is noticeable in the Fabris judgment: ‘where an applicant’s pleas relate to the “rights and freedoms” guaranteed by the Convention the courts are required to examine them with particular rigour and care and […] this is a corollary of the principle of subsidiarity’. 32 Likewise, in Broniowski, the Grand Chamber stated that once a systemic defect underlying a Convention violation has been identified, ‘it falls to the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate, the necessary remedial measures in accordance with the subsidiary character of the Convention’. 33 By including both general and individual measures in a friendly settlement after a pilot judgment, a State strengthens the principle of subsidiarity, says the Court. ‘Conversely, any failure by a respondent State to act in such a manner necessarily places the Convention system under greater strain and undermines its subsidiary character’. 34
Indeed, the principle of subsidiarity implies not only a duty of restraint for the ECtHR, but also a duty to act for domestic authorities. More precisely, it implies the duty to secure Convention rights. The fact that domestic authorities have the first-line responsibility for Convention rights is the very reason why the Court should give them the room to do so, both procedurally and in substance.
This article goes one step further in its objective to examine what more the Court can and arguably, should do, to enable domestic authorities to exercise this responsibility. It argues that a realistic and effective functioning of the subsidiarity model requires the Court to offer some guidance to domestic authorities, regardless of its respect for the (wide) margin of appreciation. In addition, it puts forward that an effective functioning of the subsidiarity model may in some circumstances require a narrowing of the margin of appreciation.
In what follows these claims will first be put in the context of an argument in favour of the adequate valorisation of what will be termed ‘the positive dimension of subsidiarity’ (section 2). This refers to the idea that from the perspective of the Court, the subsidiarity principle requires not only an emphasis on the need for restraint, but may also entail a responsibility to act. The next sections will attempt to sketch some of the main contours of this responsibility. The central idea is the Court’s potential for enabling domestic actors to accept their primary responsibility for human rights. Section 3 will argue that, in the name of subsidiarity, the Court may wish to offer a number of guidelines to domestic authorities, even when these enjoy a wide margin of appreciation. Section 4 will suggest that in some cases, the Court will need to exercise strict scrutiny – and hence reduce the margin of appreciation – for the sake of subsidiarity.
The positive dimension of subsidiarity
As explained above, discussions on the implications of the principle of subsidiarity for the actors involved, have tended to focus on negative obligations for the ECtHR in the form of a duty of restraint. Obligations to act, that is positive obligations, more specifically, the obligation to provide first-line protection of Convention rights are in this context envisaged for the national authorities. However, it is argued in this article that this ‘negative subsidiarity’ is just one part of the story of the implications of subsidiarity from the perspective of the Court. This article contends that the implications of subsidiarity for the ECtHR should not be seen only in negative terms. It will be maintained that an effective cooperation and division of work between the supranational and national levels – ‘a shared responsibility’ 35 – requires a broader vision that includes also a positive face of subsidiarity. This positive face implies a discussion of what the Court can and should do on account of its subsidiary role. The argument for the conceptualisation of this ‘positive subsidiarity’, rests on a number of interacting components.
The textual argument
In the first place, there is the text of Protocol 15, Article 1, which manifestly envisages a positive role for the Court as inherent in the concept of subsidiarity: Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.
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Subsidiarity as a principle of division of work
The second element relates to the nature of the subsidiarity principle. This is not a principle that intends to determine the requisite degree of protection of Convention rights, but rather a principle that seeks to organise the division of work for the protection of Convention rights, that is the respective roles of the supranational and national bodies. 37 In the words of the Copenhagen Declaration, ‘strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection, but to underline the responsibility of national authorities to guarantee the rights and freedoms set out in the Convention’. 38 In other words, the room for manoeuver that is left to national authorities under the subsidiarity principle, and that is operationalized through the margin of appreciation, is not to be seen as a blank check, nor as a license to restrict Convention rights. This room is defined and delineated by its purpose, which is the guarantee of Convention rights.
Effective rights protection
The third component is a leading principle for the interpretation of Convention rights, as developed by the ECtHR: ‘It is of crucial importance that the Convention be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory’. 39 The Court mobilizes this principle as a guideline for its own role, and a lens for its interpretation of the Convention. It is submitted that the application of the same principle to the interpretation of the subsidiarity principle, stands in the way of a merely negative, hands-off approach by the Court. More concretely, the finding that a certain matter falls within the realm of the national authorities, does not absolve the Court from all responsibility. For the reasons that are explained hereafter, the effectiveness principle requires that the Court does whatever is within its powers, not only to control state performance ex post, but also to enable national authorities ex ante in their efforts to guarantee Convention rights.
The Court as a standard setter Erga Omnes
This is linked to the fourth element, which is the fact that, in addition to deciding a concrete case inter partes, the Court’s judgments have an important erga omnes effect, by determining how the Convention is to be interpreted. Hence, the Court functions not only as an ex post adjudicator, whereby it states what the national authorities in a particular case should have done. In addition, and with infinitely greater impact, it is a standard setter for future cases, across all 47 (+1) 40 States Parties. It is in this context that it is relevant to discuss the guidance the Court is giving national authorities through its judgments for the exercise of their first-line role in guaranteeing Convention rights (see Section 3). It is worth noting that the States Parties have chosen to strengthen this role of the Court by the adoption of Protocol 16. This Protocol allows the highest courts and tribunals of a State Party to request the Court to give advisory opinions on questions of principle relating to the interpretation or application of Convention rights. 41
The Court as authoritative interpreter
This in turn is linked to the final principle that ultimately determines the Court’s role in the subsidiarity set-up, in that the Court ‘authoritatively interprets the Convention’. 42 It has the final authority on the interpretation of the Convention rights. In other words, the Court is a centre of expertise on Convention rights, deriving authority from knowledge and experience, and at the same time the final arbiter on all Convention matters, deriving authority from its role in the European human rights protection system. This means that the exercise of the national authorities’ first-line responsibility for guaranteeing human rights, in addition to being submitted to the Court’s supervision which is exercised ex post, is above all circumscribed by the Court’s reading of Convention rights. As a result, the more carefully the Court’s case law demonstrates how any particular Convention right is to be read and what its implications are, the better the national authorities are able to exercise their first-line role in a practical and effective manner.
Summing up: Positive subsidiarity
Read together, these elements lead to the conclusion that a well-functioning European human rights protection system in a subsidiarity framework requires the Court to take on a responsibility to enable and facilitate domestic actors in the exercise of their ‘primary responsibility’ to secure Convention rights and freedoms. State authorities should exercise this responsibility whenever relevant, by effectively examining the compatibility with the Convention of planned measures that may restrict fundamental rights. Moreover, State authorities should exercise this responsibility in a qualitative manner, adopting correct methods of legal reasoning, as well as substantive interpretations in line with the Court’s case law.
By ‘positive subsidiarity’, this article understands the responsibility of the ECtHR vis-à-vis the exercise of national authorities’ primary role in Convention rights protection. This notion will be developed in this article along two lines, which will be examined from the angle of their implications for the margin of appreciation. 43 The first line of inquiry (Section 3), considers the Court’s responsibility – as a matter of positive subsidiarity – to offer guidance to national authorities in the exercise of their primary role in guaranteeing Convention rights. The starting point for this is the finding that this responsibility exists on account of the principle of subsidiarity, and hence exists in all cases, even when the margin of appreciation is a wide one. This is because the leeway States are granted under a wide margin of appreciation, is not a leeway to ignore or restrict Convention rights. Rather, it is leeway to make their own choices in how to guarantee and implement Convention rights. This requires solid knowledge of the meaning of Convention rights and the modalities under which they can be restricted. The second line of inquiry (Section 4) rejects the erroneous equation between subsidiarity and the (wide) margin of appreciation. It considers a scenario in which the principle of (positive) subsidiarity requires the Court, as a matter of positive subsidiarity, to restrict the margin of appreciation and exercise particularly thorough scrutiny of the human rights matter at stake.
The first line of inquiry assumes State authorities that are able and willing to protect Convention rights, while aimed at guiding and facilitating them for optimal performance. The second line of inquiry however, fits a scenario in which the alleged human rights violation strikes at the capacity of domestic human rights actors and therefore undermines the trust that can be had in a well-functioning domestic system of human rights protection. In this scenario, the ECtHR’s responsibility to enable the work of domestic human rights actors takes a broader angle that includes non-state actors, and is focused on the need to protect these actors against human rights violations that incapacitate them.
Positive subsidiarity responsibilities accompanying a (wide) margin of appreciation
As explained above, this section builds on the premise that, while respecting a domestic margin of appreciation, the Court should set standards on how to secure Convention rights and freedoms. These desired standards should function as authoritative guidelines to domestic authorities, and that clarify the limits of their margin of appreciation.
It is argued that such practice is most effective in a logic of positive subsidiarity, when the Court’s messages are formulated in terms that offer guidance not only to the defendant State, but also to authorities in other States Parties that may be confronted with similar issues. Finally, it is asserted that there are at least three relevant dimensions to the guidance that may be offered by the Court in a positive subsidiarity framework, notably, substantive, procedural, and discursive dimensions.
This article has a theoretical-normative objective, but its proposals are empirically rooted. The theory of positive subsidiarity and the three types of guidance to national authorities, are rooted in the case law of the Court. At the same time, the theory can also serve as a reference frame from which to criticise some other strands of case law. This will become clear in the discussion of the three types of guidance that follows. Indeed, the case law contains examples of good as well as bad practice in each category. The vision expressed in this article is, that by embracing a theory of positive subsidiarity, the Court should avoid the bad practice.
Substantive guidance: The limits of the margin
The first type of guidance that – it is argued – the ECtHR should offer to national authorities in all cases, is substantive guidance regarding the interpretation of Convention rights. It is not contested that even when a wide margin of appreciation applies, States Parties cannot interpret Convention rights in arbitrary ways. Some guidance by the Court, concerning the scope of rights provisions and the limits to rights restrictions, is at the heart of the enterprise of joint European human rights protection that the Convention embodies. Hence, whenever a matter falls within the scope of the Convention, a degree of substantive guidance by the Court is needed. Without that, there would be no added value to the Convention and the matter might as well have fallen outside its scope. Accordingly, it is important that the Court should give an indication of the limits of States’ margin of appreciation in the field under consideration. Such a message obviously comes across most clearly in a judgment finding a violation; 44 and violation judgments always give some substantive guidance. Yet, this does not do away with the possibility – and the need – to indicate the limits of the margin of appreciation, also in ‘no violation’ judgments. It is submitted that a particularly problematic situation arises when there have been several judgments on a certain issue, and – applying a wide margin of appreciation – the Court has never found a violation. In the absence of substance guidance in such a line of case law, domestic actors may get the impression that any kind of restriction, however far-reaching, is acceptable in that field.
One such field concerns headscarf bans, that is bans on religious symbols or headgear that mainly target or impact Muslim women wearing a headscarf on religious grounds. Such bans proliferate across Europe and have been challenged several times before the ECtHR. Until the recent Lachiri judgment, 45 the Court had found no violation in any of the cases that have been brought before it, despite the diversity of contexts, which have concerned pupils and teachers in schools, photographs on identity documents, and public sector employees. 46 In some countries, headscarf bans are multiplying in private employment, and increasingly also in access to goods and services. 47 In Belgium, an MP of the ruling Flemish Christian-Democrats even opened the debate on a headscarf ban in the entire public sphere, similar to the face veil ban. 48 Headscarf bans in these contexts – private employment, access to goods and services, public space – have never been examined by the Court. Yet, in the absence of substantive guidance in the Court’s headscarf case law as to the limits of the margin of appreciation in this field, parliaments, executives and judges have little indication as to whether there are any limits to what is allowed under the Convention. The result is that domestic judges rule that the Convention is not violated when headscarves are banned for clients of a fitness centre 49 or even an ice cream parlour. 50
This points to the need for the Court to reflect on the messages it is sending in its judgments to domestic actors on the substantive human rights matter as such, beyond the facts of the case at hand. The key point is that, from a perspective of positive subsidiarity, even if the case at hand falls within the margin of appreciation of the State, the Court needs to give domestic actors some indication of where the limits of that margin lie. A Court that is aware of the crucial character of its guiding role in a positive subsidiarity framework, should avoid leaving States without substantive guidance on any particular matter. This is especially the case when it appears likely that a certain type of Convention rights restriction and/or variations of it, is far from exceptional across the Council of Europe. In particular, when a judgment finds no violation in the context of a wide margin of appreciation, it is important that the Court makes an effort to explain in its reasoning what it considers to be the range of situations that are (not) covered by its finding in the case, or to otherwise give handles to domestic actors across Europe to enable them to derive from the judgment such crucial information for their own contexts. Returning to the headscarf example, the Lachiri judgment 51 is unfortunately an example of a missed opportunity in this regard. In this first finding of a Convention violation on account of a headscarf ban, the Court’s reasoning remains very close to the facts of the case at hand, which concern the refusal of access to a courtroom of a headscarf wearer, on the basis of legislation requiring the courtroom audience to be bare-headed as a matter of respect. Disregarding an explicit request for more guidance as to the limits of permissible headscarf bans, 52 the judgment does not contain any language that would assist Belgian policy makers or judges to take a position on any of the numerous actual or proposed headscarf bans in the country (cf. supra).
Procedural guidance
In addition, it is submitted that procedural guidance is a useful companion to the margin of appreciation. The principle of subsidiarity relies on the untested assumption that domestic authorities are able and willing to control the compatibility of rights-restrictive measures with the Convention. In order to guarantee that this assumption is not a false one, it is helpful if the Court offers some guidance on quality requirements of human rights scrutiny. This is something the Court has in fact been doing, which has been picked up by scholars. 53
If positive subsidiarity is taken seriously, it is contended here that a wide margin of appreciation should be granted only in cases where the Court is satisfied that a qualitative control of conventionality has taken place at the domestic level. The subsidiarity principle – and its instrument, the margin of appreciation – do not single out a zone that is free of conventionality control, but rather stipulate a division of labour with regard to such control between the national and the supranational levels. A serious conventionality control has to happen in any case. It is self-evident that the standard of what constitutes a serious and high-quality conventionality control can be set only by the ECtHR. Hence, it is part of the Court’s responsibilities in a framework of positive subsidiarity to give procedural guidance to States regarding their control of the conformity of (planned) rights-restrictive measures with the ECHR. Procedural guidance is essentially different from substantive guidance. Substantive guidance concerns the outcomes of human rights scrutiny, whereas procedural guidance concerns the manner in which human rights conformity is tested.
In its developing practice of quality control of domestic procedure, 54 the Court resorts to different models of procedural review. I argue that the type that is to be considered best practice from a perspective of positive subsidiarity, is what may be called ‘substance-flavoured procedural review’. 55 This is a procedural review that gives some binding guidance for the substance of domestic conventionality control, for example by highlighting which elements should be taken into account in the proportionality assessment. The example that comes to mind is the Court’s case law on defamation, where it has formulated a ‘checklist’ of relevant criteria in the proportionality assessment, and grants a wide margin of appreciation when the domestic authorities have used the same checklist. 56 This results in a supranational scrutiny of domestic human rights scrutiny. From the angle of positive subsidiarity, this serves – not only in the case at hand – as a test to determine whether a wide margin of appreciation is justified. In addition, and more importantly, it gives hands-on guidance for domestic actors across Europe on how to test the conventionality of a particular type of rights-restrictive measure. 57
The worst practice in this field, is a reference to domestic procedure that is strictly focused on formal aspects. Such an approach is not capable of detecting the absence of serious conventionality control at the domestic level. An extreme example is the case of Belcacemi, 58 concerning a ban on face covering in public in Belgium. In this judgment, the Court made a statement about the Belgian parliamentary process toward adoption of this measure that suggests that it had some weight in the balance: 59 ‘the decisional process […] lasted several years and was characterized by an extensive debate in the Chamber of representatives’. 60 Yet in fact, insiders and close observers know that the reason why the process lasted several years was not because the discussion took a lot of time, but rather because the process had to be re-started after early elections. What is more, the ‘extensive debate’ in the Chamber was characterised by the absence of human rights considerations, and all measures that could have been employed to provide more thorough discussion (expert hearings, advice of the Council of State, re-examination by the Senate) were rejected in this case. 61 In the opinion of the present as well as several other observers, it cannot credibly be claimed that the Belgian parliament in this process has undertaken any kind of conventionality control. 62 Therefore, when considered from the angle of positive subsidiarity, the above quote about the parliamentary process is a bad example of procedural review. Indeed, this type of procedural review does not check whether any domestic control of conventionality has taken place, let alone that it would hold States to certain standards in such control.
Discursive guidance
Finally, a category of discursive guidance can be distinguished, which concerns the way of talking and writing about certain human rights related topics. Harmful stereotypes are a prominent factor in the marginalisation of minorities. When they amount to hate speech, they can be human rights violations in their own right. In other situations, they may be a contributing or aggravating factor to a human rights violation. It is argued that, regardless of the margin of appreciation, the Court should be mindful not to reinforce or tolerate harmful stereotypes or other problematic language in human rights reasoning.
In the first place, this applies to the Court’s own discourse, that is, in its judgments. This is important because any problematic language in ECtHR judgments can be expected to ‘trickle down’ in the language of national authorities that consult these judgments for guidance. In that respect, it is good to note that some ‘worst practice’ of the past Strasbourg case law has been corrected, including homophobic stereotyping in the early LGB rights case law in the 1970s and 80s, 63 and Islamophobic stereotyping until a few years ago. 64 This remains a point of attention, and a matter in constant flux. The same terms that are considered ‘normal’ one day, may later come to be seen as problematic, stigmatizing language. A field that is currently in flux, is that of transgender rights. It has already been pointed out that the Court’s language in its transgender case-law contributes to a problematic pathologisation of transgenders. 65
In addition, positive subsidiarity benefits from active discursive guidance by the Court, which would imply naming harmful stereotypes in the discourse of domestic authorities and in the broader context of legal and policy measures, while taking these into account in its reasoning. Several examples of good practice in this respect can be found in the Court’s case law, in particular regarding gender stereotypes. A recent example is the judgment of Carvalho Pinto de Sousa Morais, in which a woman in a medical negligence claim was faced with legal reasoning relying on gender stereotypes. The Court expertly named and deconstructed the stereotype, stating that: [t]he question at issue here is not considerations of age or sex as such, but rather the assumption that sexuality is not as important for a fifty-year-old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfilment of women as people’.
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Positive subsidiarity requiring a narrow margin of appreciation
As argued above, a complete theory of subsidiarity includes what has been termed ‘positive subsidiarity’, that is, an emphasis on the responsibilities of the ECtHR with regard to the ability of domestic actors to optimally fulfil their first-line responsibility to guarantee Convention rights. In the previous section, these responsibilities were developed in terms of the need for the Court to give guidance to national authorities with regard to substance, process and discourse, in order to facilitate effective high-quality conventionality control at the domestic level. It was put forward that the responsibility to offer these kinds of guidance exists regardless of the width of the margin of appreciation, as the guidance is offered not only to the authorities in the defendant States, but rather to all domestic actors across the Council of Europe that are involved in guaranteeing Convention rights. In the present section, another implication of positive subsidiarity is briefly sketched. It is argued that the principle of positive subsidiarity implies in some situations an obligation of strict scrutiny on behalf of the Court, and hence a narrowing of the margin of appreciation. One such scenario has already been sketched above, where it was claimed that a wide margin of appreciation should be conditional upon a qualitative domestic control of conventionality. This section will zoom in on another – very important – scenario. Positive subsidiarity thus disrupts the erroneous equation of subsidiarity and a wide margin of appreciation, as its inherent logic of enabling domestic human rights protection, must lead in some scenarios to the explicit rejection of a wide margin. 67
It is argued that positive subsidiarity requires strict scrutiny by the ECtHR, with regard to cases that concern the capacity of domestic institutions and actors that play a key role in domestic human rights protection, to effectively perform their role. These include State actors, amongst whom the judiciary, national human rights institutions, and ombudspersons. It also includes private actors, in particular those that are included in the concept of ‘human rights defenders’ as defined in the UN context, and which includes amongst others, attorneys, journalists, NGOs and individual activists. 68
The argument is a simple one: State measures that threaten the capacity or the efficiency of such domestic human rights actors, merit top priority for the Court, meaning that they should be examined fast and that they should be examined with the strictest scrutiny.
This is a matter that touches at the heart of subsidiarity, because subsidiarity presupposes well-functioning domestic mechanisms of human rights protection and of human rights scrutiny. If domestic human rights protection is incapacitated, subsidiarity in human rights protection cannot function properly. When domestic human rights players are the subject of alleged human rights violations, the Court needs to thoroughly scrutinise the allegations, in order to keep intact and/or restore the subsidiarity-based system of human rights protection.
The Court’s case law is largely in conformity with this idea. Reference can be made to several lines of case law. One example, is the long-standing line of reasoning in Article 10 cases that reduces the margin of appreciation regarding restrictions on press freedom, when the press is discussing matters of public interest. This includes the press reporting on human rights violations. 69 Another example, under Articles 6 and 10, is the Grand Chamber case of Baka, which concerned threats to the independence of the judiciary. 70 This case concerns the enactment of a law leading to the dismissal of the president of the Supreme Court shortly after he criticised government plans relating to judicial reform. His criticism included the risk that the planned reform would threaten the independence of the judiciary. The Court found violations of the right of access to court and of freedom of expression. One of the fine features of the Court’s reasoning in this judgment, is its examination of the proportionality of the measure even though it was no longer necessary after it had rejected its legitimate aim. This enabled the Court to clearly make the point about the need for strict scrutiny in this case, on multiple grounds, one of which was the impact of the case on the independence of the judiciary. 71
The ECtHR case law includes numerous examples of cases that concern threats to the capacity of key domestic human rights actors to perform their role for the protection of human rights. One of the most illustrative lines of case law in this regard are the Article 11 cases on arrests and other interferences with freedom of assembly of human rights defenders and opposition politicians, such as in Azerbaijan, 72 Russia 73 and Turkey. 74 In those cases, the Court has frequently found violations. Yet in many of these judgments, this is not accompanied with any distinctive reasoning regarding the need for a narrow margin of appreciation in this type of cases. It is submitted that, from the perspective of positive subsidiarity as defined in this article, it would be valuable for the Court to emphasize the important role that certain actors play in domestic dynamics of human rights protection, as well as the particular harm of certain types of human rights violations with regard to formal and informal human rights protection mechanisms. In addition, the need – in a positive subsidiarity framework – for a well-functioning domestic human rights protection mechanism, could be linked to the need for a protected sphere of action for actors that formally or informally monitor human rights.
Conclusion
This article has argued that the relationship between the margin of appreciation and the principle of subsidiarity in the case law of the ECtHR is more nuanced and multi-faceted than is generally assumed. In particular, this article has attempted to enrich the narrative on subsidiarity, by adding a layer that emphasizes what the Court might positively do to promote a well-functioning system of human rights protection in Europe that is based on the principle of subsidiarity. This is intended as a counterpoint to the common emphasis on what the Court should not do in the name of subsidiarity.
In a theory of subsidiarity that includes a component of positive subsidiarity, an emphasis on subsidiarity does not equate a wide margin of appreciation. In some circumstances, the Court’s responsibilities toward positive subsidiarity require it to narrow the margin of appreciation. In addition, it is submitted that even when there is a wide margin of appreciation, positive subsidiarity requires the Court to give guidance to domestic actors in the exercise of their primary responsibility to secure Convention rights. The arguments made in this article are rooted in the case law of the ECtHR, which includes multiple examples of what is presented here as good practice. The central argument is therefore not one in favour of radical innovation, but rather an argument for consistency in good practice, and for naming and recognizing the key dynamics of positive subsidiarity in the Court’s legal reasoning.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.